Although most searches require warrants, police officers are allowed to search their immediate surroundings when dealing with potential arrests for their own self protection. The Ohio case involves a man named Antwaun Smith. He was arrested on drug charges. At the time of his arrest his cell phone was ceased and later it was searched. The police found information important to their investigation on his cell phone calling records.

The recent ruling of the Ohio State Supreme Court was a divided 4/3 vote. The decision indicated that Mr. Smith’s protection against unreasonable search and seizures under the 4th Amendment to the US Constitution were violated. The court, in its decision stated that cell phones are “capable of storing a wealth of digitized information”. The court’s decision indicated that individuals using cell phones have an expectation of privacy which is protected by the 4th Amendment to the US Constitution.

The Ohio court’s ruling creates a new type of privacy. As hand-held devices become more and more sophisticated, they will contain more and more personal information. Individuals rights of privacy in devices that are basically hand-held mini computers should be protected by the 4th Amendment to the US Constitution. I have every hope that when a case presents itself, the NY Court of Appeals will make a similar ruling that respects individuals rights of privacy against unreasonable searches and seizures of all types of hand-held telephones and computer devices.

Should you, a friend or a loved one be subject to what amounts to be an unreasonable search, the criminal defense attorneys at the Law Office of Elliot S. Schlissel can use their expertise and diligence to protect your rights and the rights of a friend or a loved one. E-mail or call us at 1-800-344-6431.

May 11, 2009

Right now, it depends which part of New York you live in. In Westchester and Albany, the police do not need a warrant to place a GPS tracking device on your car, but in Nassau County they do.

On March 24th, the New York Court of Appeals heard oral arguments (video here) in the case of People v. Weaver, which will probably lay out a uniform rule for all of New York State (the Supreme Court of the United States has not yet ruled on the matter). In that case, the Defendant is appealing of the affirmation of his conviction by the Appellate Division, 3rd Dept. People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008).

In this case, Albany police secretly placed a GPS tracking device on the Defendant’s car to track his movements without acquiring a search warrant beforehand. The issue in the case is whether tracking someone with a GPS device constitutes a “search.” If it does, then the police must either get a warrant first or justify their decision not to obtain a warrant under one of the established warrant requirement exceptions. If it is not a search, then the Fourth Amendment would not be implicated at all and no warrant would be required.

The trial court and the Appellate Division reasoned that placing the GPS tracking device on the car was not constitute a search and thus did not require a warrant because the police were not learning anything from the tracking device that they could not have learned by simply following the car. The courts held that since anyone can follow any car on the road, individuals do not have a “reasonable expectation of privacy” that the location of their cars on the roads will remain a secret.

During the oral arguments in the Weaver case, Chief Judge Lippman asked the attorney for the government whether he would see any constitutional problem if the police decided to work with car dealerships to install GPS tracking devices on everyone’s car to watch their every vehicular movement. He elicited an admission by the government lawyer that his position was that such a practice would not offend individuals’ “reasonable expectation of privacy” under either the New York or U.S. Constitutions.

My legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments as well, and predicted that the new Chief Judge Jonathan Lippman will pen a majority opinion finding that surreptitiously installing a GPS tracking device on a car does constitute a search and would ordinarily require a warrant absent some kind of exigent circumstances (emergency). Or, even if he does not write a majority opinion, that he would write a strong dissent arguing that placing a GPS tracking device on a car does constitute a search.

In this case, the danger of a limitless right by the police to track individuals’ every movement justifies a constitutional requirement that they obtain a warrant before doing so in order to avoid abuses.

As always, if you need criminal defense help or feel that you are being investigated by the police for a crime, you are invited to contact our office.

Update 5/12/09: I posted one day too early. I have not gotten to read the case yet, but apparantly the Court of Appeals just issued their decision in this case, finding that the New York Constitution does indeed prohibit warantless placement of GPS tracking devices without a showing of Exigent Circumstances by police. LINK.

April 27, 2009

Last week, the Supreme Court announced the groundbreaking decision of Arizona v. Gant, significantly limiting the police’s ability to conduct searches of automobiles “incident to a lawful arrest” without either a warrant or probable cause. Before the Gant case, however, New York courts have consistently interpreted the State Constitution much more strictly, in this regard, than the Supreme Court had interpreted the U.S. Constitution.

This post will explore whether the new Gant decision makes the national rule regarding incident-to-arrest searches more lenient, as strict as New York’s rule, or stricter than New York, which would invalidate the New York rule to the extent that it was more lenient than the new Gant rule. This post will conclude that the Supreme Court’s new rule in Gant is still more lenient than New York’s rule, and that New York’s search-incident-to-arrest jurisprudence will probably not be affected by the holding in Gant.

In short, before Gant was decided on Tuesday, the national rule, established by the Chimel case, was that was that incident to any lawful arrest, police may search “the area from within which he [an arrestee] might gain possession of a weapon or destructible evidence.” In the context of car arrests, the Court, in New York v. Belton, made a bright line rule that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” This right was automatic. It did not depend on the arrestee’s actual ability to reach a weapon or destructable evidence, nor did the police have to show probable cause or reasonable suspicion that the car was likely to contain evidence or a weapon.

These cases set a very low bar for what would constitute an “unreasonable search and seizure” in the context of a search-incident-to-arrest of an automobile. But New York has consistently interpreted its own Constitution more strictly, not adhering to the lenient bright line rule set by Belton.

People v Blasich, 541 N.E.2d 40 (1989), and, later, People v. Galak, 616 N.E.2d 842 (1993), have interpreted the New York State Constitution‘s “[s]ecurity against unreasonable searches, seizures and interceptions” provision (Article I, § 12)as follows: The Court of Appeals has held that the “search-incident-to-arrest exception to the warrant and probable cause requirements of our State Constitution… exist[] only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence.” Blasich.

Alternatively, the Court held that police may search the car, even where the arrestee factually cannot reach it, where they have

“probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape. If so, a warrantless search of the vehicle is authorized, not as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.” (emphasis added)

The Blasich court further held that “the proper inquiry in assessing the propriety of [the] search is simply whether the circumstances gave the officer probable cause to search the vehicle… Which of those crimes the officer selected when formally notifying the suspect that he was under arrest has little bearing on the matter.” In other words, it is immaterial whether the probable cause justifying the car search is also probable cause of the same offense that justified the initial arrest. As long as there is probable cause of some crime justifying the automobile search, the police may search it.

The question is whether the Supreme Court’s Gant decision last week brings up the U.S. Constitutional test for searches incident to arrest to the point where it is stricter than, more lenient than or the same as New York’s rule.

In order to answer that question, we must first understand what level of certainty the Supreme Court now requires the police to have that they will find evidence in the arrestee’s car. According to Gant, the police may only search an arrestee’s vehicle when when he “is unsecured and within reaching distance of the passenger compartment the time or the search”, or when it is “reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (emphasis added)

How certain must they be that evidence of the offense of arrest may be found in the car? The same level of certainty as “probable cause?” “Reasonable suspicion?” Some new test?

In that post, he rules out the idea that “reason to believe” means probable cause because if that is what it meant, the search would be justified under the “automobile exception” to the warrant requirement irrespective of the “search incident to a lawful arrest” exception. Furthermore, he points out that Justice Alito’s dissent specifically distinguishes the “reason to believe” standard from “probable cause,” indicating that he understood the majority’s “reason to believe” test to be something other than probable cause.

I would add that even though the New York Court of Appeals in Blasich, above, uses the phrase “reason to believe” to mean “probable cause, I do not think it is necessarily relevant in determining the Supreme Court’s intended meaning when using the phrase “reasonable to believe.”

Professor Kerr also reasons that it is unlikely that Terry‘s “reasonable suspicion” test is the underlying meaning of “reason to believe.” As applied to the car search context, “reasonable suspicion” would probably be defined as “whether ‘a reasonably prudent man in the circumstances would be warranted in the belief’ that there was evidence relevant in the arrest in the passenger compartment of the car.” Prof. Kerr opines that this standard would seem difficult to apply in the context of a determination of whether a search for evidence is reasonable, in contrast with its simpler application in a Terry frisk, when the officer has to make a quick decision about whether the person in front of him may be concealing a weapon.

Prof. Kerr concludes that “reasonable to believe” is probably something less than probable cause, but it is not clear to him exactly what level of certainty it is.

“Reasonable to believe” is most likely less than probable cause. Partly, this is because, as Prof. Kerr pointed out, Justice Alito understood the majority this way in his dissent (and Stevens opinion in Gantalso takes note of how influential the Brennan dissent in Belton was in shaping courts’ interpretation of the Belton majority). Also, if the majority opinion had intended to invoke the big gun, the probable cause standard, it should have and probably would have done so explicitly.

But there is another reason why this author believes that the court requires less than probable cause to justify the car search when the arrestee is secured. The fact that the court requires that the officer have a reasonable belief that evidence of the “offense of arrest” might be found in the car indicates that this level of certainty is not synonymous with probable cause. Because if it were, then the probable cause of whatever offense would justify the search of the car under the automobile exception, without the need to invoke the incident-to-arrest exception.

It is evident that the Court is trying to grant added protection to defendants by requiring that the reasonable belief must be that evidence of the offense of arrest will be found specifically because the justification for the search is something less than probable cause. Such a stringency in the search-incident-to-arrest doctrine would not be needed if probable cause that evidence would be found in the car were present and the automobile exception applied.

The court probably requires “offense of arrest” specific reasonable suspicion in order to limit the use of “pretextual stops,” where police pull someone over for some traffic offense, for which the driver could be arrested, because they want to find evidence of some unrelated offense, in a search of the vehicle in incident to that arrest.

All of that being said, it appears that New York’s rule is still stricter than the Supreme Court’s rule.

It may appear from the Court of Appeals’ Blasich decision, mentioned above, that New York is more lenient than the Gant case because it allows searches of secured arestees’ vehicles for any offense, while Gant only allows searches for evidence of the offense of arrest.

This is not so, however, because Blasich explicitly stated that the search of a secured arrestee’s car for evidence of any offense is not justified “as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.” The New York rule, therefore, permits car searches supported by probable cause that evidence of any offense will be found, using the automobile exception. While Gant holds that police must reasonably believe that evidence of the offense of arrest might be found.

This author believes, therefore, that in situations where a suspect has been secured and police do not have probable cause that evidence of some crime will be found in the car, New York will continue to apply the stricter rule that police may not search the vehicle without a warrant. While outside New York, the new Gantrule will be followed that would allow a search of a secured arrestee’s vehicle when police have a reasonable belief that evidence of the offense for which the suspect was arrested might be found in the car.

(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance… which is chargable under State law and punishable by imprisonment for more than one year [or] (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201… (emphasis added)

One of the acts “indictable under any of the following provisions of title 18” is extortion, which is defined by § 1951(a) as when someone “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do (sic)…” That section further defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

And § 1961(5) defines a “pattern of racketeering activity” as “at least two acts of [even the same] racketeering activity…”

While the town of Tenaha itself is not a proper subject of RICO prosecution because it is not a “person” under the RICO statute, the Marshall, Mayor, Constable and Shelby County D.A., in their individual capacities, would be proper “persons” for RICO prosecution. See Pelfresne v. Village of Rosemont, 22 F.Supp.2d 756, 761 (N.D. Ill. 1998).

If the facts are indeed as the San Antonio Express-News has reported, then over 140 motorists have been stopped and been “willingly” induced to sign over their property with the threat of bogus prosecutions for crimes they were never charged with and which involved searches that probably violated their fourth Amendment right to be free from unreasonable searches and seizures.

Furthermore, the Mayor’s comments defending the practice indicated that it was their intent to use these means to bolster the cash-strapped budget of the town’s police force. This implied that their the use of the Texas forfeiture statute to confiscate travelers’ money and property using abuses of their 4th Amendment rights was a coordinated conspiracy.

Travelers’ freedom to pass and bring property between states appears to have been impeded by “wrongful use of… fear… under color of official right.” If indeed this has occurred in over half of the 140 instances of the induced property forfeitures between 2006 and 2008, and it can be shown that the officials involved took part in at least two instances of extortion each, then it would appear that the Marshall, Constable, Mayor and D.A. in Tenaha and Shelby County may be susceptible to criminal (and perhaps civil) RICO prosecution.

At the very least, the U.S. Attorney’s Office for the Eastern District of Texas ought to look into whether an investigation should be opened to determine if criminal RICO prosecution may be appropriate.

March 12, 2009

The Chicago Tribune has just picked up on a story from over a month ago at mysanantonio.com. The Texas town of Tenaha is using a state forfeiture law that gives the police the right to seize any property used in a crime to bolster that department’s budget. Police officers have been using this law to stop cars traveling through their tiny (pop. about 1000) town and they have taken property from over 140 drivers between 2006 and 2008.

They apparently told people that if they didn’t sign their property over to the police, they would press charges against them for money laundering or other crimes. One waiver said “In exchange for (respondent) signing the agreed order of forfeiture, the Shelby County District Attorney’s Office agrees to reject charges of money laundering pending at this time…”

Cynically, the mayor of the town said that the seizures allowed a cash-poor city the means to add a second police car in a two-policeman town and help pay for a new police station… “It’s always helpful to have any kind of income to expand your police force.”

Without probable cause that a crime has taken place, and exigent circumstances to justify why the police must search the car without a warrant, police may not search a person’s car unless they have a “reasonable suspicion” that a person poses a danger to the police officer. And even then, they may only pat down a person or search in their immediate vicinity to the extent that such a search may help them find any weapons that could be used against them. They may not search outside of that scope searching for evidence of any crime however. Terry v. Ohio.

In some cases, the only “factual basis” for the drug or money laundering “charges” was the presence of larger sums of money in the car. And even for that, they would have had to search the car to find the motorists’ expensive property or cash without any “reasonable suspicion” of a threat to the police officer. In such a situation, that would be unconstitutional as well.

Normally, the remedy for the police’s violation of someone’s 4th Amendment rights would be suppression of any evidence obtained throught that violation. But in this case, since the individuals chose to sign over their property to the police, and no charges were filed, there is no evidence to suppress. Thus, the only remedy for a violation of these people’s Constitutional rights is by civil remedy, a §1983 discrimination case.

Thus, David Guillory, attorney for the so-far eight plaintiffs in the lawsuit against the town of Tenaha, filed a §1983 Complaint in District Court seeking compensation for the town’s violation of his clients’ Fourth Amendment Constitutional rights.

If the facts are proven to be as egregious as Mr. Guillory and the aforelinked articles suggest, I very much hope he is successful in his case against the town and that the State adopts more stringent rules to prevent abuses like these from happening in the future.

February 26, 2009

Last month, the Supreme Court made it more difficult for a defendant to have evidence suppressed in its decision in the case of Herring v. U.S. In that case, police consulted clerks in a neighboring county regarding the existance of an arrest warrant for Mr. Herring. They had not updated their system to reflect that an arrest warrant against Herring was not current. In reliance on the arrest warrant that they thought existed, police arrested Herring and found drugs and a gun. Herring moved to suppress the evidence against him because it was found in the course of an arrest that was not supported by a valid warrant.

In an opinion by Justice Scalia, the Supreme Court ruled that “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” However, the Court held that the quirky failure of the clerks in the neighboring county to update the warrant system was not “so objectively culpable as to require exclusion.”

The Fourth Amendment Blog reported on the Illinois Appellate Court case of People v. Morgan from two weeks ago where the police tried to rely on Herring to avoid the exclusion of certain evidence of drug crimes that the police found while executing an invalid search warrant at Morgan’s home. There, the police relied on a list of search warrants that was up to three days old, rather than following their own procedure of printing out an updated list of valid search warrants every day.

Quite appropriately in my opinion, the Illinois appellate court reversed the trial court’s decision not to suppress the evidence. It held that Herring’s ruling was not applicable to the facts surrounding the search of Morgan’s home.

In Herring, the error in updating the warrant records was made by a clerk, not by the authors actually executing the warrant, as was the case with Morgan. Since the mistake was not made by police officers, exclusion of the evidence couldn’t meaningfully deter the not-systematically-negligent conduct of those non-police officers.

In Herring, the officers’ reliance on the warrant was not negligent because they were told it was valid by the clerk. But the officers were negligent in Morgan because they used an up to three day old warrant list without even attempting to verify the continued validity of the search warrant against Morgan.

The mistake that led to the out-of-date warrant in Herring was merely negligent, and therefore would not be meaningfully deterred by excluding the evidence obtained in the course of executing that warrant. But in Morgan, Exclusion of the evidence would lead to meaningful deterrence because it will motivate officers to be careful to use up-to-date warrant lists, as per their own department’s policy.

Herring was not meant, by the Supreme Court, to give carte blanche approval of police negilgence in the execution of warrants and should not be used that way. Society’s need for order and protection from criminals is essential, but the power to invade private homes and detain people is a great and awesome power, and thus it comes with a heavy burden of responsibility to exercise that power with great care.

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Established in 1978, The Law Office of Elliot S. Schlissel is a multi-service firm committed to client-focused, cost-effective legal services in the Five Boroughs of New York City, Nassau and Suffolk Counties. Our office services clients in the areas of Family, Criminal, Real Estate, Personal Injury, Elder Law, Bankruptcy, and Wills, Trusts and Estates.Mr. Schlissel graduated from SUNY Oswego in 1972 and attended the Hofstra and Buffalo law schools. He has been practicing matrimonial, personal injury, Bankruptcy, Wills, Trusts, & Estates, criminal defense, family law, elder law/Medicaid Planning, and general litigation for over 32 years. To reach Mr. Schlissel, or one of the other skilled attorneys at the firm, CLICK HERE.